Reasons for a Motion to Dismiss for Insufficiency of Service of Process
Service of process is an essential part of the legal process, notifying those named in a legal matter of their involvement, the accusations, and their upcoming court date. It is necessary for the service of process to be done correctly for it to be considered valid. If it is not done correctly, it can give the defendant a reason to request dismissal of the entire case, in which case the entire process would have to be restarted. In this post, we’ll go over the different things that can go wrong with service of process, rendering it invalid and setting the defense up for a motion to dismiss.
What is Service of Process?
As mentioned above, service of process involves formally notifying everyone named in a court case about the filing of the case, the grounds for the case, and when it is to be heard in court. This notification is required by both federal and state laws, and is even discussed in due process clauses of the U.S. Constitution. For the service of process to be valid, the documents related to the case, known as process, must be delivered in accordance with state laws where the process is being served. If the law is not followed to the letter, trouble could be down the road.
Grounds for a Motion to Dismiss Due to Insufficiency
A motion to dismiss based on insufficiency of service of process can be filed for several reasons, each pointing to a failure in meeting legal standards during the service of process:
Improper Delivery Method
Every state has their own laws and rules about how process may be served. In most states, in-person service must at least be attempted several times before any other method of service can be attempted. If the person to be served cannot be located, a request can be made for alternative service, such as service by substitution or publication. If the service of the process is not done in accordance with the laws of the state where the process is being served (not necessarily the state where the court case originates), then it is not considered valid and can give the defendant grounds to request dismissal. Some states even have laws governing how process must be served in other states, in which case the process server would need to follow the laws of both the originating and the service state.
Incorrect Party Served
If the process server mistakenly serves the process to the wrong person, the service is considered invalid. This is why it is so important for process servers to verify the identity of the person being served via multiple methods. It is best if the person being served is willing to show their state-issued identification, but this isn’t always possible.
Timing Issues
Process must be served within a set timeframe for the case to move forward. If it is not, the case must be refiled with the clerk of court and the process must be reissued.
Lack of Proof of Service
When a defendant challenges a process server’s claim that they were served, the process server must be able to produce a valid proof of service. The proof of service document outlines the details of the service, and in an ideal case, would be signed by the person who received the process. If the process server cannot produce proper proof of service, the defendant may be able to prove their claim that they were never served. It is always a good idea for the process server to file a copy of the proof of service with the clerk of court where the case was originally filed, in addition to providing the client with a copy and keeping a copy for their own files.
Implications of Insufficient Service of Process
In most cases, insufficiency of service of process will only cause the judge to delay the case while the process validity issue is remedied. For example, if the process was served via an improper method, or served to the wrong person, the judge may simply request that it be reserved in the correct manner or to the correct person. In these cases, even though a defendant may try to file a motion to dismiss, it will likely be shot down. However, there are some cases where the judge grants the motion to dismiss, meaning that the plaintiff will need to restart the case from the beginning. This will cause significant delays and extra costs.
Professional Process Serving Matters
Don’t let procedural errors lead to insufficiency of service of process claims in your legal cases. Work with the professional, experienced process servers at Accurate Serve of Charlotte for all your process service, document retrieval, skip tracing, and diligent search services in North Carolina and South Carolina. To get started, call us at 704-858-2952 or send us a work request online.